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160 F.

3d 899

Tammy YOUNG, Individually and as parent and natural


guardian
of infants Matthew Young, Michael Young and Nicole
Young, Plaintiff-Appellant,
v.
COUNTY OF FULTON, Fulton County Department of Social
Services, Karen Hasenfuss, Individually and in her official
capacity as an employee of the County of Fulton, Kathleen
Pape, Individually and in her official capacity as an
employee of the County of Fulton, Penny Lockwood,
Individually and in her official capacity as an employee of
the County of Fulton, Jeanne D. Johannes, Individually and
in her official capacity as Commissioner of the Department
of Social Services of Fulton County, John Doe, unknown
employee of the County of Fulton, and Jane Doe, unknown
employee of the County of Fulton, Defendants-Appellees.
No. 754, Docket No. 98-7559

United States Court of Appeals,


Second Circuit.
Argued Oct. 20, 1998.
Decided Nov. 16, 1998.

V. Michael Liccione, Whitesboro, NY (Bond Schoeneck & King,


Syracuse, NY, on the brief), for Plaintiff-Appellant.
Stephen J. Rehfuss, Albany, NY, (Brennan & Rehfuss, P.C., on the brief)
for Defendant-Appellee County of Fulton.
Timothy Horigan, Amsterdam, NY (Horigan, Horigan & Lombardo, P.C.
on the brief), for Defendants-Appellees Fulton County Department of
Social Services, Karen Hasenfuss, Kathleen Pape, Penny Lockwood,
Jeanne D. Johannes, John Doe, and Jane Doe.

Before: NEWMAN and JACOBS, Circuit Judges and TSOUCALAS,


Judge.*
JACOBS, Circuit Judge:

In September 1992 plaintiff-appellant Tammy Young voluntarily placed her


twin boys in foster care under the supervision of the Fulton County Department
of Social Services ("DSS"). Young brings this lawsuit under 42 U.S.C. 1983
(1994) seeking damages against the County of Fulton, DSS, and several
individual employees of DSS for allegedly denying her the right to visit her
children for 39 days, without the prior hearing required by New York law.
Young also argues that certain procedural failures evidence a conspiracy to take
her children permanently in violation of her custodial rights.

Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or alternatively


for summary judgment in accordance with Fed.R.Civ.P. 56. Individual
defendants argued that they were entitled to qualified immunity because at the
time of the events in this case there was no clearly established right of a parent
to visit children voluntarily placed in foster care, or alternatively that their
actions were objectively reasonable under the circumstances. The County and
DSS argued that Young failed to make the necessary showing for municipal
liability under 1983 that the harm resulted from an official policy, custom, or
practice. All defendants argued that the allegations of a conspiracy are
conclusory and therefore insufficient to support a claim under 1983. The
United States District Court for the Northern District of New York (Hurd,
M.J.), granted summary judgment: (A) for the individual defendants on the
ground that there was no clearly established parental visitation right for a noncustodial parent; (B) for the County and DSS on the ground that Young could
not show that the actions of the individual defendants were done pursuant to a
policy, custom, or practice of the County or DSS; and (C) for all defendants on
the conspiracy claim on the grounds that the allegations were conclusory.
Young v. County of Fulton, 999 F.Supp. 282 (N.D.N.Y.1998). We affirm for
the reasons stated herein.

BACKGROUND
3

In reviewing the grant of summary judgment against Young, we view the facts
in the light most favorable to her and draw all reasonable inferences in her
favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505,
2513, 91 L.Ed.2d 202 (1986).

A. Facts
4

Young is the mother of three children. During 1989 and 1990, there were at
least nine incidents of serious domestic violence between Young and her
husband in which her twin boys were subjected to physical and emotional harm.
On that basis DSS filed a neglect petition in the Family Court of the State of
New York in December 1990. At the August 1991 hearing on this petition,
Young (who was represented by counsel) admitted to negligence charges under
N.Y. Fam. Ct. Act 1012(f) (McKinney 1991). Young and her family were
placed under DSS supervision for one year.

A month after the one-year period of supervision ended, Young came to DSS
and voluntarily placed her twin sons in foster care. Young explained to the
caseworker that she was having trouble controlling the twin boys and that they
were a threat to their younger sister. The caseworker advised Young that as a
result of her voluntary placement of the children in foster care, a second neglect
petition would be filed. At a Family Court hearing on the second neglect
petition in May 1993, the boys were ordered to be held in foster homes under
DSS supervision until March 1994. The boys were originally placed in separate
homes, but both were eventually placed under the foster care of defendant
Karen Hasenfuss.

Young maintains that because she brought the twins to DSS voluntarily, DSS
should have taken custody of the twin boys pursuant to a "voluntary petition"
rather than a "neglect petition." Young claims that this was the first step in a
conspiracy among DSS employees Penny Lockwood, Kathleen Pape, and
Karen Hasenfuss to take custody of the boys from Young so that Hasenfuss
could adopt them. According to Young, the filing of a neglect petition enabled
DSS to remove the boys from her more quickly, and afforded defendant
Hasenfuss (as foster parent) preference over the maternal grandparents in
adoption proceedings. In support of her claim that DSS filed an improper
petition, Young notes that only one of the eight alleged acts of neglect
underlying the second neglect petition was recorded in the state register of child
abuse, a recordation required by New York law.

During the latter part of 1993, DSS decided that the mother's relationship with
the twins was continuing to deteriorate. The boys allegedly suffered from
severe emotional trauma before and after her visits. Citing this phenomenon,
and the failure of Young (now divorced) to provide a stable home environment,
DSS decided to take custody of the boys permanently. On September 2, 1993,
Young was notified that DSS intended to file a petition to keep the children in
foster care indefinitely. DSS suspended Young's visitation rights eleven days

later. In a contemporaneous letter, DSS employee Lockwood (the children's


counselor for nearly two years) explained that decision to caseworker Pape on
the basis that the children's behavioral problems decreased after placement in
the foster home, but that they were exhibiting extreme reactions of distress
before and after each visit with their mother. Lockwood expressed the view,
which DSS has adopted, that the denial of visitation was in the best interests of
the children.
B. State Court Proceedings
8

On September 21 (eight days after Young's loss of visitation privileges) DSS


filed a permanent neglect petition in Family Court seeking permanent custody
of the boys. Two days later, while this petition was still pending, Young filed a
petition in Family Court demanding the right to visit her children. The Family
Court conducted a preliminary hearing on Young's petition and, on October 21,
ordered visitation to resume immediately. In December, the Family Court
conducted a full hearing on the visitation dispute. The supervisor of DSS's
foster care department admitted on cross-examination that although the
decision to deny visitation was in the best interests of the children, the decision
was made in violation of New York law. The court held that N.Y. Comp.Codes
R. & Reg. tit. 18, 430.12 required a court order before suspension of visiting
rights, and ordered that the visits be permitted to resume. In light of this
decision, DSS dropped its permanent neglect petition. Young eventually
regained custody of her sons.

DISCUSSION
9

We review a district court's grant of summary judgment de novo. See Reeves v.


Johnson Controls World Servs., Inc., 140 F.3d 144, 149 (2d Cir.1998).
Summary judgment is appropriate only if the evidence presented shows that
there is no genuine issue of material fact. See Fed.R.Civ.P. 56(c).

10

The thrust of Young's argument is that the defendants violated New York law
by suspending her visiting rights without due process, and that this failure: (1)
constitutes the violation of a clearly established federal right; (2) shows that the
individual defendants were improperly trained; and (3) evidences a conspiracy
to take her children permanently without due process of law.

11

The fact that DSS employees violated New York law when they denied
plaintiff visitation without a prior hearing does not necessarily give rise to a
federal civil rights claim. See Doe v. Connecticut Dep't of Child & Youth

Servs., 911 F.2d 868, 869 (2d Cir.1990). The procedure mandated by state
family law is not the benchmark for evaluating whether or not there has been a
federal constitutional violation. "[A] violation of state law neither gives
[plaintiff] a 1983 claim nor deprives defendants of the defense of qualified
immunity to a proper 1983 claim." Robison v. Via, 821 F.2d 913, 922 (2d
Cir.1987). Without more, the fact that defendants violated New York
procedural requirements does not support liability under 1983.
A. Claims Against Individual Defendants
12

Magistrate Judge Hurd held that the individual defendants were entitled to
qualified immunity on the claim that they deprived Young of her constitutional
right to visit her children on the ground that there was no clearly established
right to visitation for a non-custodial parent. See Young v. County of Fulton,
999 F.Supp. 282, 286-87 (N.D.N.Y.1998). We think the issue in this case is
considerably narrower than the one framed by Young and decided by the
Magistrate Judge. Whatever the contours of the right of a non-custodial parent
to visit a child, the issue in this case concerns only whether, as a matter of
federal due process, there is a right to a pre-termination hearing before
visitation may be suspended, and, more particularly, whether such a procedural
due process right was clearly established at the time of the events in this case.

13

Government agents enjoy qualified immunity when they perform discretionary


functions if either (1) their conduct "did not violate clearly established rights of
which a reasonable person would have known," or (2) "it was objectively
reasonable to believe that [their] acts did not violate these clearly established
rights." Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir.1993) (internal
quotations omitted) (quoting Finnegan v. Fountain, 915 F.2d 817, 823 (2d
Cir.1990)); see also Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982). In deciding whether a right was clearly
established, we ask: (1) Was the law defined with reasonable clarity? (2) Had
the Supreme Court or the Second Circuit affirmed the rule? and (3) Would a
reasonable defendant have understood from the existing law that the conduct
was unlawful? See McEvoy v. Spencer, 124 F.3d 92, 97 (2d Cir.1997).
Typically this Court puts significant weight on whether or not the law was
governed by controlling precedent of this Circuit. See Richardson v. Selsky, 5
F.3d 616, 623 (2d Cir.1993). Even in the absence of binding precedent, a right
is clearly established if "[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right....
[T]he unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635,
640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The question is not what a
lawyer would learn or intuit from researching case law, but what a reasonable

person in a defendant's position should know about the constitutionality of the


conduct.
14

There is no authority for the proposition that in 1993 a non-custodial parent had
a clearly established right to a pre-termination hearing before suspension of
whatever visitation rights she might have retained. Two courts that considered
the issue prior to 1993 both held that federal due process requirements are
satisfied by a hearing after termination. See Fitzgerald v. Williamson, 787 F.2d
403, 408 (8th Cir.1986); Pfoltzer v. County of Fairfax, 775 F.Supp. 874, 881-83
(E.D.Va.1991). Young's reliance on Aristotle P. v. Johnson, 721 F.Supp. 1002
(N.D.Ill.1989), is unavailing. That decision suggests that a right of familial
association is a corollary of the parental custody rights announced in Stanley v.
Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972). See
Aristotle P., 721 F.Supp. at 1007-08 (upholding the right of siblings not to be
separated for extended periods of time without visits to each other). The
relevance of that decision to a person like Young, who voluntarily surrendered
custody, is doubtful, but in any event, that decision did not begin to describe the
contours of a parental visitation right and did not remotely establish a
procedural right to a prior hearing before visitation could be suspended. Young
cites no other authority for her argument. We hold that in 1993 Young had no
clearly established right to a prior hearing before whatever visitation rights she
might have had could be temporarily denied, and that the individual defendants
therefore are entitled to qualified immunity.
B. Claims Against Entity Defendants

15

The district court dismissed Young's Monell claim against the County of Fulton
and DSS because her allegations failed to establish that she suffered any
deprivation of her rights by reason of an official policy, custom, or practice of
the County or DSS. See Young, 999 F.Supp. at 285-86 (citing Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). We agree
with the district court and affirm on that ground.

16

Young urges vigorously on appeal that the DSS employees failed to comply
with the procedural requirements of New York law, and that this noncompliance demonstrates a failure to train under Monell. This argument is not
addressed in the district court opinion.

17

A claim for failure to train will trigger municipal liability only where "the
failure to train amounts to deliberate indifference to the rights" of those with
whom the state officials will come into contact. See City of Canton v. Harris,

489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989). In Walker v.
City of New York, 974 F.2d 293 (2d Cir.1992), this Court listed three showings
required to support a claim that a municipality's failure to train amounted to
"deliberate indifference" of the rights of citizens: (1) that "a policymaker [of
the municipality] knows 'to a moral certainty' that [its] employees will confront
a given situation"; (2) that "the situation either presents the employee with a
difficult choice of the sort that training or supervision will make less difficult
or that there is a history of employees mishandling the situation"; and (3) that
"the wrong choice by the ... employee will frequently cause the deprivation of a
citizen's constitutional rights." Walker, 974 F.2d at 297-98 (citation omitted).
Under the Walker test, a claim for failure to train cannot be sustained unless the
employees violated a clearly established federal constitutional right. See
Watson v. Sexton, 755 F.Supp. 583, 588 (S.D.N.Y.1991) ("To be 'deliberately
indifferent' to rights requires that those rights be clearly established."). We
therefore affirm the dismissal of the Monell claim against the County and DSS.
C. Conspiracy Claim
18

Finally, as to the claim that the County of Fulton and DSS conspired with the
individual defendants to deprive Young of permanent custody, the district court
held that Young's purely conclusory pleadings were insufficient to withstand a
motion for summary judgment. Specifically, as to the individual defendants, the
district court could identify no particular fact in support of a conspiracy claim.
See Young, 999 F.Supp. at 287. As for the County and DSS, the district court
found that there was no evidence suggesting that the conspiracy, if it existed,
was undertaken pursuant to a policy, custom, or practice of the County or DSS,
and that in any event, the acts of the individual defendants were beyond the
scope of employment and could not be imputed to the County and DSS. See
Young, 999 F.Supp. at 286.

19

In her affidavit opposing summary judgment, Young alleged that defendants


misused their authority to file a petition to deprive Young of custody, and
advanced the following proof that they were motivated by selfishness or
malice. First, although Young conceded that her visits caused the twins
distress, she argued that the twins "had exhibited this 'problem' behavior before
they went into foster care," and implied that DSS had a responsibility to help
her overcome her own parental deficiencies. Second, DSS did not suspend visits
by her ex-husband or his parents despite the fact that the twins allegedly had
problems before and after all family visits. Finally, Young claims that the
permanent neglect petition falsely alleged that DSS made "diligent efforts to
encourage and strengthen the parental relationship," and that Young "failed for
a period of more than one year following the date the children came into the

care of [DSS] ... substantially to ... plan for the future of the children although
physically and financially able to do so." Young offered evidence that she
attended various counseling at the behest of DSS and pointed out that the
permanent neglect petition did not allege how Young failed to satisfy the
obligations imposed on her by the second neglect petition. Young contends that
her compliance with the second neglect petition shows that DSS and the
individual defendants had an improper motive in filing the permanent neglect
petition.
20

This evidence against the individual defendants is thin at best, and amounts to
nothing as against the County and DSS, but we need not address these issues
point by point, because we can affirm the district court ruling on an
independent ground.

21

Unquestionably there is a constitutional right to custody of one's children. See


Stanley, 405 U.S. at 652, 92 S.Ct. at 1213; Robison, 821 F.2d at 921. But
Young voluntarily relinquished temporary custody, and was never denied
permanent custody. The effort to deprive Young of permanent custody, which
she alleges was a conspiracy, began with the filing of an allegedly improper
permanent neglect petition. Until DSS dropped the petition, proceedings were
moving along the normal procedural channels established by New York law,
which Young does not challenge under the federal Constitution. There was no
deprivation of a federal constitutional right, and therefore there can be no civil
rights conspiracy to deprive that right. See Singer v. Fulton County Sheriff, 63
F.3d 110, 119 (2d Cir.1995) ("[T]he [conspiracy] lawsuit will stand only
insofar as the plaintiff can prove the sine qua non of a 1983 action: the
violation of a federal right.").CONCLUSION

22

The judgment of the district court is hereby affirmed.

The Honorable Nicholas Tsoucalas, of the United States Court of International


Trade, sitting by designation